Trunninger v. Busch , 7 Daly 124 ( 1877 )

Joseph F. Daly, J.

The complaint is in the usual and proper form in an action or contract against a factor for failure to pay a balance due for goods sold by him on commission for plaintiff. (Conaughty v. Nichols, 42 N.Y. 83.)

There are no allegations in the complaint other than those proper in an action upon contract; but the affidavits on which the order of arrest was granted contain a statement that the plaintiff had received from defendant, “ as security for the balance due, the notes of third parties.” Certain allegations are contained in the affidavit as to representations and concealments by defendant when he gave the notes, but no fraud is alleged or shown on his part in the transfer of the securities. Defendant’s affidavit is to the effect, among other things, that these notes of third parties were taken by plaintiff in payment, and two of them have been collected by plaintiff, and the proceeds retained, and the others have not been paid, and plaintiff has never offered to return them.

The judge at special term held that the taking of the notes of third parties, collecting some of them and retaining the others, barred the right to arrest. (Alliance Ins. Co. v. Cleveland, 14 How. Pr. 408.)

I think the decision correct. This case is to be distinguished from Kelly v. Scripture (9 Hun, 283); Shipman v. Shafer (14 Abb. Pr. 449); Dubois v. Thompson (1 Daly, 309), where upon the dishonor of the note or notes given by the factor for the balance due the right to sue upon the original indebtedness revives. Here some of the notes of the third parties were paid, and plaintiff, without offering to surrender the other unpaid notes of third parties, indorsed by defendant, brings this action on the original claim against him as factor, and seeks an order of arrest. The arrest is undoubtedly oppressive and unauthorized, and was properly vacated.

The order should be affirmed, with $10 costs.

Charles P. Daly, Ch. J., and Larremore, J., concurred.

Order affirmed, with $10 costs.